The Magistrate could not be compelled to treat the protest petition as a complaint.
VISHNU KUMAR TIWARI
STATE OF UTTAR PRADESH THROUGH
SECRETARY HOME, CIVIL SECRETARIAT
LUCKNOW AND ANOTHER
The second respondent, in this appeal generated by special leave, got registered a First Information Report which invoked Sections 201, 304B and 498A of the Indian Penal Code, 1860 (hereinafter referred to as ‘the IPC’ for short) and sections 3 and 4 of the Dowry Prohibition Act, 1961. The Investigating Officer, however, on the basis of the investigation, after taking the statements, filed a final report under section 178 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Cr.P.C.’ for short)
The second respondent thereupon filed a protest petition. The Chief Judicial Magistrate passed an order concluding that the daughter of the second respondent/complainant, wife of the appellant, died due to her illness. It was further found that the accused persons had not caused any harassment or torture to her nor has committed dowry death. There was no prima facie case made out against the accused persons under Section 498A, 304B and 201 of the IPC and sections 3 and 4 of the Dowry Prohibition Act, 1961. It was found that there is no sufficient ground made out for action and the protest petition was dismissed and the final report accepted.
The second respondent thereupon lodged a revision petition before the Additional Sessions Judge. The Additional Sessions Judge did not find merit and dismissed the criminal application. This led to a writ petition before the High Court at Allahabad. This petition was filed invoking Article 226 of the Constitution of India. A Writ of Certiorari was sought to quash the impugned order passed by the Additional Sessions Judge and the order passed by the Chief Judicial Magistrate. A further direction was sought to be passed to investigate the case by taking statements of the victim’s family and other witnesses and submit a report before the Chief Judicial Magistrate. The direction was sought to the Chief Judicial Magistrate for looking into the matter afresh for taking cognizance against the accused persons in the case.
By the impugned judgment, the High Court set aside the orders passed by the Chief Judicial Magistrate and the Additional Sessions Judge. The Chief Judicial Magistrate was directed to consider the protest petition afresh in the light of the observations made therein. Feeling aggrieved by the said order, the special leave petition was filed, for which permission was sought and was granted by order dated 04.12.2017.